Circuit Court for Baltimore City Case No. 117362037
Meredith, Nazarian, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
flurry of intense Supreme Court activity in the decade from
June of 1967 through June of 1977 produced a weighty body of
criminal-constitutional law that has generally been referred
to simply as "identification law." The thrust of
this opinion is that, notwithstanding that impressive body of
constitutional doctrine, every time that the word
"identification" is used in a case or an issue
involving identification somehow arises in a case is not
necessarily the occasion to invoke constitutional
identification law. The mere word "identification"
need not set off the constitutional fire bell. Just as there
have been, since 1967, numerous constitutional issues
involving identification law, there always have been and will
continue to be numerous non-constitutional issues that may,
coincidentally, involve the subject of identification. As
will be more fully discussed infra, there may be,
for instance, a constitutional chasm of difference between
what we will call selective identification issues and other
merely confirmatory identification issues. We need to look at
identification issues more closely before invoking the
appellee, Daniel Joseph Greene, was indicted on December 28,
2017, in the Circuit Court for Baltimore City, for the
first-degree murder of Jon Hickey. The appellee moved
pre-trial to suppress both an out-of-court and an in-court
identification of him by Jennifer McKay as the man depicted
in a surveillance video tape. Following a hearing on August
20, 2018, the suppression hearing judge granted the
appellee's motion. Appropriately, the State filed an
State filed its appeal on August 20, 2018. The appeal is
authorized by Maryland Code, Courts and Judicial Proceedings
Article, Section 12-302(c)(4). Pertinent are subsections
(c)(4)(iii) and (iv):
(iii) Before taking the appeal, the State shall certify to
the court that the appeal is not taken for purposes of delay
and that the evidence excluded or the property required to be
returned is substantial proof of a material fact in the
proceeding. The appeal shall be heard and the decision
rendered within 120 days of the time that the record on
appeal is filed in the appellate court. Otherwise, the
decision of the trial court shall be final.
(iv) Except in a homicide case, if the State appeals on the
basis of this paragraph, and if on final appeal the decision
of the trial court is affirmed, the charges against the
defendant shall be dismissed in the case from which the
appeal was taken. In that case, the State may not prosecute
the defendant on those specific charges or on any other
related charges arising out of the same incident.
record was filed with this Court on October 23, 2018.
Accordingly, our decision must be rendered no later than
February 20, 2019. We heard oral argument on January 7, 2019.
Suppression Motion Based On Identification Law
of an omnibus ten-pronged pre-trial motion pursuant to
Maryland Rule of Procedure 4-252, the appellee moved for the
suppression of both an out-of-court identification and an
in-court identification of the appellee. The grounds asserted
were that the identifying witness, Jennifer McKay, had been
subjected to impermissibly suggestive procedures pursuant to
Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18
L.Ed.2d 1199 (1967), and its progeny in the course of the
identification procedure. Sections 5 and 6 of the omnibus
5. That any identification of the Defendant made at a
pre-trial identification procedure be suppressed as
having been obtained by an impermissibly suggestive
process, and in violation otherwise, of this
Defendant's Constitutional or other legal rights.
6.That the in-court identification of this Defendant be
suppressed as the product of a pre-trial identification
process which was impermissibly suggestive, or which
otherwise violates the Constitutional and other legal rights
of the Defendant.
the appellee chose constitutional identification law as the
suppression hearing battleground, everyone else followed
suit. There were, to be sure, enough surface similarities to
familiar identification law to make that an easy mindset into
which to fall. The challenge based on identification law was
the sole focus of the suppression ruling and that is the only
issue brought before us on this State appeal.
Wrong Pew In The Wrong Church
we have elected to consider, purely arguendo,
constitutional identification law as an alternative holding,
our basic feeling is that this case is, quite to the
contrary, not a case involving familiar constitutional
identification law at all.
facts are unusual. The victim, Jon Hickey, was murdered in
his Fells Point apartment in the early morning hours of
November 29, 2017. Several days after the murder, the police
recovered a surveillance video from the house next door to
Jon Hickey's apartment. It apparently showed a figure
attempting to enter the Hickey apartment. The police believed
that that unknown figure may have been the murderer.
Jennifer McKay was asked to come to the police station to see
if she could identify the figure on the video cam recording.
She readily assented. As of the time of the murder, Jennifer
McKay had been involved in an intimate romantic relationship
with Jon Hickey for several months. Prior to that, Jennifer
McKay had been involved in an intimate relationship with the
appellee for five years. She and the appellee, moreover, had
known each other well since childhood. A strong theory as to
murderous motive was the appellee's jealousy at having
been replaced by Jon Hickey.
police station, Jennifer McKay was shown the relatively brief
footage recorded by the video cam. It was not in evidence.
The police interview with Jennifer McKay, however, was
recorded and later transcribed. It was the police behavior
during that interview that was the exclusive focus of the
Was No Selective Process In Play
the decades, it has been recognized that the very purpose of
constitutional identification law has been to guarantee the
reliability of the selection process. Whenever a witness is
asked to select the wrongdoer from a line-up of suspects, to
select a photograph of the wrongdoer from a photographic
array, or otherwise to select the wrongdoer from a larger
group, the law's concern is that the selection process be
untainted by the police slipping the answer, by word or by
more subtle behavior, to the witness.
case, by contrast, there was no selection process in play.
Jennifer McKay was not asked to look at three separate video
cam tapes and to select the one with the appellee in it.
Jennifer McKay was asked simply to confirm, if she could,
that the man on the surveillance tape was the appellee,
Daniel Greene. Jennifer McKay's knowledge of the
appellee's appearance was absolute, beyond any
peradventure of a doubt. All that Jennifer McKay was asked to
do could as readily have been asked of the appellee's
mother or of his best friend or of his probation officer.
difficult question in this case involved not Jennifer
McKay's ability to identify the appellee but rather the
quality of the picture or tape she was being asked to review.
Was it a good picture or was it an essentially unrecognizable
picture? How far away was the subject from the camera? Was
the scene well-lit or dark? Did the subject ever turn and
look at the camera? Did the camera have any adverse impact on
color? She was not looking at high school yearbook photos but
at possibly blurred and ambiguous images.
Reliability Factors Are Totally Inapplicable
Simmons v. United States, 390 U.S. 377, 88 S.Ct.
967, 19 L.Ed.2d 1247 (1968), impermissible suggestiveness is
nothing more than a threshold question. The primary concern
is with ultimate reliability. Our focus is now on the
reliability factors articulated by Neil v. Biggers,
409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and
Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53
L.Ed.2d 140 (1977). In the present day, almost the entire
attention of constitutional identification law is on these
reliability factors. In the case before us, however, those
reliability factors are utterly irrelevant. Classic
identification law is simply inapplicable. How then do we
apply the heart of identification law if the heart of
identification law is irrelevant?
Think So" Versus "I Know So"
case is not about identification law, what then is it about?
A fair reading of the suppression hearing transcript and a
fair reading of the transcript of the police interview of
Jennifer McKay reveal clearly that what really concerned the
appellee and defense counsel and the suppression hearing
judge was a discernible effort by the police to coach the
witness. Any suggestiveness, however, concerned not whom
Jennifer McKay would select. There was no selective
identification. It concerned how forcefully or persuasively
Jennifer McKay would testify. The police wanted to prime her
to be a more effective witness.
police interview of Jennifer McKay was fundamentally friendly
and amicable at all times. The exchanges were relaxed and
pleasant. Jennifer McKay, moreover, was not ultimately
affected by any police suggestiveness. She identified the
appellee as the man on the video cam tape at the very outset
of her interview. She identified him in almost precisely the
same terms at the very end of the interview. In response to
the very first police question, Jennifer McKay responded:
DET. O'CONNOR: Does he look like anybody?
MS. MCKAY: It looks like Dan.
DET. O'CONNOR: Why does it look like Dan?
MS. MCKAY: The beard.
DET. O'CONNOR: Anything else?
MS. MCKAY: The build. DET. O'CONNOR: Okay.
was obvious difficulty with the quality of the tape,
particularly with the effect that "night vision"
had on color.
DET. O'CONNOR: Take a look at them.
MS. MCKAY: It kind of looks like him.
DET. VAUGHN: Just remember the night vision is there.
DET. O'CONNOR: So, the colors are the things you're
looking at aren't really the same.
MS. MCKAY: What they are, right, right. So what color
would that jacket be?
DET. O'CONNOR: I don't know.
MS. MCKAY: Okay.
another point, another detective showed her a photographic
DET. VODERK: All right. Do you recognize anyone?
MS. MCKAY: Yes.
DET. VODERK: What number was the person you
MS. MCKAY: Number four I believe. The top one.
DET. VODERK: Okay. Who is that person?
MS. MCKAY: Daniel Greene.
DET. VODERK: Okay. And how do you know Daniel
MS. MCKAY: He's my ex-boyfriend.
pictures she viewed convinced Jennifer McKay that the
appellee had killed Jon Hickey.
DET. O'CONNOR: . . . . [W]hat do you think happened to
MS. MCKAY: Someone killed him.
DET. O'CONNOR: Someone?
MS. MCKAY: Dan did.
DET. O'CONNOR: Why do you say that?
MS. MCKAY: Pictures.
end of the interview, her position was unchanged.
DET. VAUGHN: When you look at those pictures, I know you
said that it looks like Dan. Is that Dan on those
MS. MCKAY: (Affirmative nod).
DET. VAUGHN: You're shaking your head.
MS. MCKAY: Yeah.
problem the police had was exclusively with Jennifer
McKay's degree of certainty. Her answers were
consistently and invariably "I think so" rather
than the prosecutorial desideratum "I know so." At
one point she explained that her answer meant that it
"looks more like him than it doesn't look like
MS. MCKAY: It looks very much like him. But I mean,
I can see small differences. Like that, the face frame. But
(inaudible) looks more like him than it doesn't look
DET. O'CONNOR: Okay.
supplied). She is not being uncertain about Daniel Greene.
What was uncertain was the quality of the surveillance
the police tried to urge her to be more sure, Jennifer McKay
remained adamant ...